Skip to main content

Court, let voters decide on gay marriage

By Ken Klukowski, Special to CNN
March 28, 2013 -- Updated 1614 GMT (0014 HKT)
STORY HIGHLIGHTS
  • Ken Klukowski: Cases heard by Supreme Court could result in momentous change
  • He says there are questions of whether cases could be tossed because of special circumstances
  • If court issues sweeping ruling, it could deprive voters of chance to weigh in
  • Klukowski: Gay marriage is such a new phenomenon that court shouldn't freeze the debate

Editor's note: Ken Klukowski is the senior fellow for religious liberty at the Family Research Council and the legal columnist for Breitbart News. He filed a brief in one of the cases heard by the Supreme Court this week.

(CNN) -- This week the Supreme Court heard two historic cases on marriage. Even though I was a lawyer in the litigation and in the courthouse both days, I can't predict which way the court will come down. But the outcomes range from nothing at all to fundamentally restructuring the foundational unit of western civilization.

Hollingsworth v. Perry is about whether state laws defining marriage as one man and one woman violate the 14th Amendment of the U.S. Constitution. United States v. Windsor asks whether Section 3 of the Defense of Marriage Act, which defines marriage for federal law and programs as between one man and one woman, is unconstitutional. DOMA passed in 1996 with 78% of the U.S. House and 85% of the Senate and was signed by President Bill Clinton.

The whole nation is focused on the litigation. Ironically, it's possible that neither case will be decided on the merits.

Ken Klukowski
Ken Klukowski

In Hollingsworth, California's governor and attorney general abdicated their duties by refusing to defend their state constitution. So pursuant to California law, the sponsors of Prop 8 — officially registered with the state — stepped in to defend the law, represented by Charles Cooper at Cooper Kirk and the Alliance Defending Freedom.

In Windsor, the defendant was the federal government. But President Barack Obama declared that he believes DOMA is unconstitutional and ordered his Justice Department not to defend it. So per its rules, the U.S. House voted to authorize Paul Clement — probably the greatest Supreme Court lawyer practicing today — to defend DOMA.

Article III of the Constitution limits the jurisdiction of the federal courts. One requirement is that there must be adversity between the parties. Since the defendants in both cases refused to defend their own laws, the court will consider whether the Constitution allows these third-party legal teams to become a proper party to the lawsuits.

There's a second issue in Windsor. Edith Windsor entered into a gay marriage in Canada in 2007 and lived in New York. When her partner died in 2009, Windsor sued to contest the federal estate tax she paid, claiming a spousal exemption.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



But New York did not create gay marriage until 2011, so Windsor was not harmed by DOMA not allowing the federal government to recognize her marriage, since if the IRS used state definitions Windsor would still be regarded an a single woman. Thus it's possible she lacks standing to sue over the issue. It also raises the issue of whether courts must recognize polygamous marriages, which are legal in dozens of nations worldwide.

The swing vote regarding the Article III issues in both cases is probably Chief Justice John Roberts. He openly expressed skepticism in Hollingsworth and led the Court in an hour-long debate in Windsor solely focused on whether the court has jurisdiction.

Assuming the court does decide the merits, the implications are historic.

Windsor would alter America's system of federalism. Only the states determine who can get married. But the federal government is free to decide whom to confer federal benefits on — largely economic entitlements and federal issues such as immigration. Federalism is a two-way street. But if DOMA Section 3 is invalidated, the states will be able to dictate whom the recipients of federal benefits are.

If Windsor is historic, Hollingsworth is earth-shattering. If the Supreme Court declares a constitutional right to marriage other than one-man, one-woman, then all traditional marriage laws in all 50 states will be invalid, and there will be a serious debate (already in a lower federal court) of whether polygamists also have a constitutional right to national recognition.

On the merits, the court seems unlikely to declare an unwritten constitutional right to gay marriage, though arguments did not go as well for DOMA. Justice Anthony Kennedy is likely the swing vote in both.

As Justice Samuel Alito said this week, the Internet and cell phones have been around on this planet longer than gay marriage. It is an energetic debate in all 50 states, and this summer we will learn whether the Supreme Court will shut down this debate by making it a constitutional issue on which the American people are not allowed to vote.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Ken Klukowski.

ADVERTISEMENT
Part of complete coverage on
September 1, 2014 -- Updated 1221 GMT (2021 HKT)
Carlos Moreno says atheists, a sizable fraction of Americans, deserve representation in Congress.
August 31, 2014 -- Updated 1625 GMT (0025 HKT)
Julian Zelizer says Democrats and unions have a long history of mutual support that's on the decline. But in a time of income inequality they need each other more than ever
August 31, 2014 -- Updated 0423 GMT (1223 HKT)
William McRaven
Peter Bergen says Admiral William McRaven leaves the military with a legacy of strategic thinking about special operations
August 29, 2014 -- Updated 1611 GMT (0011 HKT)
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
August 29, 2014 -- Updated 1724 GMT (0124 HKT)
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
August 30, 2014 -- Updated 0106 GMT (0906 HKT)
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
September 1, 2014 -- Updated 1554 GMT (2354 HKT)
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
August 29, 2014 -- Updated 1434 GMT (2234 HKT)
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
August 28, 2014 -- Updated 1432 GMT (2232 HKT)
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
August 29, 2014 -- Updated 0243 GMT (1043 HKT)
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
August 30, 2014 -- Updated 1722 GMT (0122 HKT)
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
August 29, 2014 -- Updated 1330 GMT (2130 HKT)
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
August 29, 2014 -- Updated 1849 GMT (0249 HKT)
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
August 26, 2014 -- Updated 2242 GMT (0642 HKT)
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
August 27, 2014 -- Updated 1321 GMT (2121 HKT)
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
August 27, 2014 -- Updated 1319 GMT (2119 HKT)
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
August 26, 2014 -- Updated 2335 GMT (0735 HKT)
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
August 26, 2014 -- Updated 2053 GMT (0453 HKT)
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
August 26, 2014 -- Updated 1919 GMT (0319 HKT)
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
August 26, 2014 -- Updated 1558 GMT (2358 HKT)
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
August 25, 2014 -- Updated 1950 GMT (0350 HKT)
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
August 25, 2014 -- Updated 2052 GMT (0452 HKT)
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
August 25, 2014 -- Updated 2104 GMT (0504 HKT)
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
August 22, 2014 -- Updated 2145 GMT (0545 HKT)
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
ADVERTISEMENT